Development Of Antitrust Law Research Articles

The 2010 Horizontal Merger Guidelines After 10 Years

This paper introduces the Special Issue of the Review of Industrial Organization that studies the impact of the 2010 Horizontal Merger Guidelines after 10 yearsOn August 19, 2010, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued newly updated Horizontal Merger Guidelines (2010 Guidelines) [See https://www.ftc.gov/sites/default/files/attachments/merger-review/100819hmg.pdf.]. The 2010 Guidelines begin by stating:“These Guidelines outline the principal analytical techniques, practices, and the enforcement policy of the Department of Justice and the Federal Trade Commission (the “Agencies”) with respect to mergers and acquisitions involving actual or potential competitors (“horizontal mergers”) under the federal antitrust laws.”Since the first Merger Guidelines were issued by the DOJ 1968, the merger guidelines have been an important channel by which economic research and learning affects antitrust enforcement. Each iteration of the merger guidelines has reflected the economic thinking of the day. Each iteration also has made a substantial impact on merger enforcement and the development of antitrust law. This special issue examines the impact of the 2010 Merger Guidelines after 10 years.

Lecture: The Rule of Reason in the Post-Actavis World

Though known more as U.S. President and Supreme Court Chief Justice, William Howard Taft played an important role in the development of antitrust law. As Sixth Circuit judge, his ruling in the Addyston Pipe case can be linked to modern antitrust law, including the Supreme Court’s 2013 decision in FTC v. Actavis on drug patent settlements. This essay draws lessons from Addyston Pipe for these settlements, explains how courts today apply the Rule of Reason, and explores the analysis of settlements after Actavis.

Introduction to The Oxford Handbook of International Antitrust Economics

Antitrust economics is a subset of industrial organization economics. What makes antitrust economics rather unique is the centrality of economic analysis to the development of antitrust law and policy. In the United States antitrust economics guides all antitrust analysis by government enforcers (at the federal level the Department of Justice Antitrust Division and the Federal Trade Commission) and courts. In other systems, the centrality of antitrust economics to antitrust law (typically called competition law) and policy has not been established. Instead, cutting edge antitrust economic analysis competes with non-antitrust economics goals. Nevertheless, across the major non-US jurisdictions, antitrust economics is far more utilized now than previously. With global mergers and various types of conduct, increased coordination across agencies, practitioner lawyers and economists around the world trained in the latest theories of antitrust economics, and a rise of economic analysis in decision-making by adjudicators, the increasing role of international antitrust economics seems somewhat inevitable. The desire to provide scholars and policy-makers across jurisdictions a reference tool to understand the most important developments in antitrust economics motivates this intoduction to the handbook. We have assembled many of the most important scholars in the field to provide overviews and analysis of the core issuers in antitrust economics. Although no handbook can be exhaustive, we have attempted to cover all of what we believe to be the major topics in the field. The developments in economic analysis across these areas that the handbook covers will shape policy and legal issues in the field for some time.

Monopoly and Anti Trust Law: Its Development and Significance

This project tries to trace the development of anti-trust laws globally and the roots of the Indian Competition Act, which is the most efficient Competition/Anti-Trust Act in India at present. This paper saliently focuses on the aspects of the Competition Act, 2002 also analyses its very basis of existence by analyzing the MRTP Act and its deficiencies. It also tries to look at the Act from a rational and pragmatic point of view and analyses its relevance and role in the modern Indian economy with the help of a couple of relevant cases. It also holistically analyses the implication of a monopoly and its intrinsic problems for which the anti-trust laws are enacted and promulgated.

Antitrust and Rebates: A Study in Analogies

Cases involving rebates (both loyalty and bundled) present a unique opportunity to observe the development of antitrust law. With little direct precedent to rely upon, courts have sought to analyze the antitrust implications of rebate schemes through analogies to other, better known, types of conduct. These efforts provide profound insight not only into the antitrust analysis of rebates, but also into the means by which antitrust law is developed. The development of antitrust law has largely followed (or lagged) economic inquiry into competitive practices. For instance, in Leegin the Supreme Court abandoned the per se rule for minimum resale price maintenance after noting that “respected authorities in the economics literature suggest the per se rule is inappropriate, and there is now widespread agreement that resale price maintenance can have procompetitive effects.” Similarly, in State Oil, after chronicling the development of the antitrust treatment of vertical restraints, the Court concluded “that there is insufficient economic justification for per se invalidation of vertical maximum price fixing.” Rebates are different. The Court has never considered this type of conduct. Nor, in fact, have many lower courts. There is no established framework of analysis for conduct involving rebates. There is no long line of cases. There is no “great weight of scholarly opinion” presenting a consensus view. While we have LePage’s and PeaceHealth, the antitrust analysis for rebate schemes therefore starts with a relatively clean slate. We are thus afforded an opportunity to witness the development of a new body of antitrust law and to examine the means by which it comes about.

COMPETITION VERSUS PROPERTY RIGHTS: AMERICAN ANTITRUST LAW, THE FREIBURG SCHOOL, AND THE EARLY YEARS OF EUROPEAN COMPETITION POLICY

The goal of the paper is to investigate the extent of the influence of American antitrust tradition on the foundation and early years of European competition policy. This as part of a wider research program aiming at assessing the role of economic theory in the development of antitrust law and policy. My argument may be summarized in four propositions. First, by taking into account what I call the “competition versus property rights” dichotomy, it turns out that the economists’ contribution to the historical evolution of US antitrust law has been smaller than usually believed. Second, as far as the foundation of EEC competition policy is concerned, the influence of the American antitrust tradition has, again, been less than what is commonly claimed. Third, a crucial role on the birth of EEC antitrust has been played by a law and economics argument based on the constitutional standing of competition rules, an argument put forward by the highly influential Freiburg School of Ordoliberalism. Fourth, the ordoliberal origin of EEC competition rules, when combined with the Community’s integration goal, helps explain why the impact of the “competition versus property rights” dichotomy on European antitrust law has been limited and, contrary to the US, always solved more favorably to the “competition” pole than to the “property rights” one.

Choice between Cartels and Horizontal Mergers

Cartels and horizontal mergers can be viewed as alternative arrangements to increase profitability and act as means of introducing horizontal restraint. The choice between the two forms from the perspective of firms is determined by the structure of industry, organization of firms, and the course of development of antitrust law. Using a conjectural variation model, we show that in absence of any penalty on cartel, a firm always prefers a cartel to merger, when the latter does not involve any efficiency gains. In particular we show that when there is perfect competition among the competitive fringe, firms do not have any incentive to form a cartel and they merge only if there are efficiencies involved. We also show that higher concentration among the competitive fringe lowers the profitability of merger as compared to cartel. We then discuss the impact of antitrust regulation against cartel in the absence and presence of merger regulations. We find that in our model, regulation against merger increases the optimal fine for cartel.

Predatory Price Cutting: The Standard Oil (N. J.) Case

THE purpose of this paper is to determine whether the pre-dissolution Standard Oil Company actually used predatory price cutting to achieve or maintain its monopoly. This issue is of much more than antiquarian or theoretic interest. Settling it is of direct importance to present anti-trust policy. At the very least, finding the facts should aid in defining certain hazy notions that now figure in discussions of monopoly and its control. The Standard Oil case of 19111 is a landmark in the development of antitrust law. But it is more than a famous law case: it created a legend. The firm whose history it relates became the archetype of predatory monopoly. It is sometimes said that Standard Oil was influential because it revealed deadly and reprehensible techniques by which Monopoly on a heroic scale could be achieved and, probably more important, perpetuated. Historians tell us that the facts revealed in Standard Oil were in good part responsible for the emphasis that the antitrust laws came to place upon unfair and monopolizing business practices. Perhaps the most famous of all of the monopolizing techniques that Standard is supposed to have used is local price cutting. Given the bad repute in which monopoly has long been officially held in this country, and the prominence of predatory pricing in Standard Oil, it is not surprising that the practice received special attention in the law. Monopoly was not new in 1911, but a predatory giant may have seemed novel. The vision of a giant firm that used a brutally scientific, and completely effective, technique for acquiring and maintaining monopoly must have aroused uncommon concern. Standard was invincible. Anything economists could say about the transience of monopoly must have seemed hopelessly unrealistic in view of the vigor and success with which Standard was said to have prevented entry. In any case, by 1914, in the Clayton Act, predatory price discrimination was included among a select group of business practices the character or effect of which called for explicit statutory prohibition. The Robinson-Patman